Pierotti Motors

National Labor Relations Board - Board Decisions

May 2, 1967

164 N.L.R.B. 257 (N.L.R.B. 1967)

PIEROTTI MOTORS 257
Henry Pierotti , Jr., d/b/a Pierotti Motors and
International Association of Machinists and
Aerospace Workers, AFL-CIO, Local Lodge
No. 1546. Case 20-CA-4183.
May 2,1967
DECISION AND ORDER
Union, on August 4, 1966,1 the General Counsel of the
National Labor Relations Board, herein the Board, issued
a complaint on October 4, alleging 8(a)(5) and (1) violations
by Henry Pierotti, Jr., d/b/a Pierotti Motors, herein
Respondent. The hearing was held before me pursuant to
due notice on December 19. The parties fully participated.
Their briefs have been considered.2
Upon the entire record in the case and from my
observations of the witnesses, I make the following:
On March 2, 1967, Trial Examiner E. Don Wilson
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the. Respondent filed exceptions to the Trial
Examiner's Decision, and a supporting brief, and the
General Counsel filed a brief in support of the Trial
Examiner's Decision.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs of
the parties, and the entire record in the case, and
hereby adopts the findings, conclusions,' and
recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Henry Pierotti,
Jr., d/b/a Pierotti Motors, Fremont, California, its
officers, agents, successors , and assigns , shall take
the action set forth in the Trial Examiner's
Recommended Order.
'These findings and conclusions are based , in part, upon
credibility determinations of the Trial Examiner to which the
Respondent has excepted After a careful review of the record, we
conclude that the Trial Examiner's credibility findings are not
contrary to the clear preponderance of all relevant evidence
Accordingly, we find no basis for disturbing those findings
Standard Dry Wall Products, 91 NLRB 544 , enfd 188 F.2d 362
(C.A. 3).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
E. DON WILSON, Trial Examiner : Upon a charge filed
by International Association of Machinists and Aerospace
Workers, AFL-CIO, Local Lodge No. 1546 , herein the
i Herein all dates unless otherwise specified refer to 1966
2 Their joint motion to correct the transcript is granted.
3 In making findings herein I have generally credited the
testimony of Manuel Francis and C L McMonagle, each of whom
impressed me as an honest witness I was unfavorably impressed
by the demeanor of Henry Pierotti, Jr He endeavored in his
testimony to satisfy not so much the interests of truth but rather to
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all times material , Respondent has been a sole
proprietorship engaged in the retail business of selling new
and used automobiles , and servicing automobiles, with a
place of business located at Fremont , California. In the
course and conduct of his business in the past year his
gross sales exceeded $500,000 . So, also, he purchased and
received goods from outside California , having a value in
excess of $50,000 . Respondent at all times material has
been an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION
At all times material the Union has been a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES3
A. The Issues
(1) Did Respondent unlawfully refuse to bargain with
the Union?
(2) Was the strike called by the Union against
Respondent an unfair labor practice strike?
B. The Appropriate Unit
All employees of Respondent, excluding office clerical
employees, salesmen, guards, and supervisors as defined
in the Act, constitute a unit appropriate for purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
C. The Majority
There were six employees in the appropriate unit,
Hamilton, Hubbard, LaComba, Dorry, May, and Matz. In
June, Francis, the Union's business agent, began an
organizing drive. He discussed the Union and the
possibility of a contract with the employees. In early July,
Francis distributed authorization cards to the employees.
The cards authorized the Union to act as the employees'
"representative for collective bargaining."
On July 5, Francis obtained signed cards from May and
Hamilton. He obtained signed cards from Dorry and
Hubbard on July 7. LaComba was already a member in
serve what he considered his self interest Frequently, his
answers to simple questions were not direct but consisted of
volunteering testimony Although he testified he doubted the
Union's majority, he also testified that all of his employees
"belonged to the Union," after July 15, and "They were already in
the union." I do not credit Pierotti's testimony where it is
contradicted
164 NLRB No. 32
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good standing of the Union and Francis did not obtain a
card from him. Thus, as of July 7, the Union represented 5
of the 6 employees in the unit for the purposes of collective
bargaining.
On July 8, Francis wrote to Respondent, advising him
that the Union represented a majority of Respondent's
employees and offering to prove the majority by means of a
check by a third party. Francis demanded recognition and
a date for a meeting. Pursuant to Respondent's reply,
July 15 was fixed as a date for a meeting between
Respondent and the Union.
On July 15, Francis and another union representative,
McMonagle, met with Respondent. They said they were
prepared to prove their majority. Francis gave Respondent
each of the four authorization cards and a letter from the
Union's financial secretary verifying the fact that
LaComba was a member in good standing of the Union.
Respondent examined each document. Francis asked him
if he questioned the Union's majority status. Respondent
said no, based on the cards and the letter "it looked as
though we represented the majority of his people." Francis
then gave Respondent copies of the collective-bargaining
agreement the Union had with an association and also one
with independents. Francis told Respondent he could join
the association so far as the Union was concerned.
Respondent replied he wanted nothing to do with the
Association and an independent agreement would have to
be negotiated if the Union were to negotiate with him.
Francis then gave Respondent copies of the health and
welfare and pension plans, explaining costs, how they
worked and the entire matter. Respondent asked if he
would have to hire through the union hall. Francis
explained. Respondent said he was going on vacation for a
couple of weeks and then for the first time mentioned a
Board election. Francis explained the Union already
represented the majority and Respondent had recognized
the Union and since it represented the majority there was
no need for a Board election. Respondent said he wanted
time to look at the documents the Union left with him and
wanted a couple of days after the first of August when he
would return from his vacation. Respondent set up the
date of August 3 to meet with the Union.
Francis left Respondent and went to the shop, advising
the employees that there would be no problem and that
Respondent was cooperative and agreeable and as soon as
he returned from vacation they could negotiate a contract.
As soon as Francis left, he returned to his office and
dispatched a letter to Respondent, giving a resume of the
events of that day. The letter was received in due course.
Respondent did not reply to it. Respondent testified he
saw it about August 5 and then said it was not until
September. I find he was not frank about the letter but I
find insufficient probative evidence that he personally
received it by August 3.
On August 3, Francis, alone, met with Respondent in
the latter's office. Respondent said he had looked over the
documents and "everything" and wasn't about to sign a
union agreement. When Francis asked if he had any doubt
that the Union represented a majority, Respondent replied
that majority had no bearing on the matter, he was not
going to have a union in the shop. He added that he did not
care about his employees' rights in requesting a union. He
said he was running the shop and "if the employees didn't
like it, they could go to work elsewhere. They could pack
up their gear and go to work somewhere else."
Francis stated he had no alternative but to picket.
Respondent became irate and raised his voice. Francis
walked out and advised some of the employees that
Respondent had refused to sign a contract and he would
have to set up a picket line; he would like them to respect
it. The employees said they would respect the picket line.
Five or ten minutes later, Francis-returned with a picket
but decided again to speak to Respondent to see if the
difficulties could not be settled. Francis and a union
representative named Cardahan spoke to Respondent.'
Respondent said he did not want a union in the shop and
he was not about to sign any union agreement and he
became agitated in discussing an airline strike. He added
that if the employees didn't like the conditions in the shop
they could work elsewhere and he would not have a union.
The union representatives said they had no alternative but
to picket and they did so. Within three-quarters of an hour,
five of the six employees walked out. Matz signed an
authorization card and walked out the next day. Still on
August 3, Respondent came to the picket line and Francis
asked him if he would negotiate. Respondent said he
wanted nothing to do with it. Also, on August 3,
Respondent filed a petition for an election which he
subsequently withdrew.
Respondent bases his doubt of the Union's majority on
the suggestion that "I noticed my men started getting a
little nervous and tense." No employee told him in so
many words that he did not choose the Union as his
bargaining representative by means of authorization cards
or other action. Respondent testified he did not believe all
his employees who walked out when the picketing began,
supported the Union because they did not carry picket
signs.5 Respondent testified LaComba and Hubbard
stated they were not interested in the Union but added
there was nothing specific but it was "just a feeling." As of
July 15, no employee told Respondent he was not
interested in union representation. Suggestions earlier or
later did not dissipate Respondent's recognition that a
majority of his employees had chosen the Union as their
bargaining representative on July 15.
Concluding Findings
On July 15, Respondent examined four authorization
cards signed by four of his six employees and a letter from
the financial secretary of the Union, certifying that a fifth
employee was a member in good standing of the Union.
Respondent recognized the Union as majority
representative when he stated, thereupon, that it looked as
though the Union represented a "majority of his people."
Thus, the Union became the collective-bargaining
representative of Respondent's employees in an
appropriate unit. It was an unlawful refusal to bargain for
Respondent to withdraw its recognition of the majority
representative on August 3. That the Union was not
I do not credit the testimony of Leo Mmank where it conflicts had "already done this That isn't necessary We already have
with that of Francis In any circumstance , Minank remembered these signed " He heard Respondent say, "All right , maybe you
Respondent saying Francis "may have had these cards, and have, but I want a secret ballot as I had before "
although these cards may have been what they said they were, he Such is not at all inconsistent with union representation
wanted to know, he wanted a vote " He heard Francis say they
PIEROTTI MOTORS
certified is immaterial. Respondent had no good-faith
doubt as to the Union's status on July 15. Nothing took
place between July 15 and August 3, which would have
afforded Respondent a good-faith doubt. Indeed it should
have been made even more clear to Respondent that the
Union represented a majority of his employees when he
saw five of his six employees on strike on August 3 and six
of his six employees on strike on August 4. It is abundantly
clear that the picketing and the strike of the six employees
was caused by Respondent's unlawful refusal to bargain
and that the strike was an unfair labor practice strike.
Respondent manifested his bad faith when he repudiated
the card checks he had made, and insisted on an election.
This Respondent not only accepted the cards and letter as
proof of majority, but also he examined proposed contracts
and health and welfare and pension plans. He commenced
bargaining negotiations. Indeed, Respondent told Francis
on August 3, "that he had looked over the documents and
everything and he wasn't about to sign any agreement."
He insisted he would have no union in the shop. This was a
clear repudiation of the principles of collective bargaining.
The record makes clear that immediately after
Respondent's refusal to bargain with the Union on
August 3, Francis told Respondent's employees that
Respondent refused to sign a contract. Francis said he was
setting up a picket line and he wanted the employees to
respect it. The picket line was established. Five employees
left work and went on strike. The sixth went on strike the
next day. This strike was caused and prolonged by
Respondent's unlawful refusal to bargain with the Union.
It was an unfair labor practice strike. The strikers were
unfair labor practice strikers.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in violations
of Section 8(a)(5) and (1) of the Act, I shall recommend that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. The
nature of the violations strikes at the heart of the Act and
calls for a broad order.
As it has been found that Respondent's unfair labor
practices caused and prolonged the strike of August 3,I
shall recommend that upon unconditional request by or on
behalf of any employee who went on strike, Respondent
immediately reinstate such employee to his former, or
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, discharging, if
necessary to effect such reinstatement, any employee who
has been hired since the strike began; that in the event of a
failure or refusal by Respondent to reinstate any striker
entitled to reinstatement, as provided herein, Respondent
make such striker whole for any loss of pay he may suffer
by reason of such failure or refusal, together with interest
at the rate of 6 percent per year; and that such loss of pay
and interest be computed in accordance with the formula
and method prescribed by the Board in F. W. Woolworth
259
Company, 90 NLRB 289, and Isis Plumbing and Heating
Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding, I make the
following:
CONCLUSIONS OF LAW
(1) At all material times Respondent has been an
employer within the meaning of the Act.
(2) At all material times the Union has been a labor
organization within the meaning of the Act.
(3) All employees of Respondent, excluding office
clerical employees, salesmen, guards, and supervisors as
defined in the Act, constitute a unit appropriate for
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
(4) At all material times the Union has been the
exclusive representative of all employees in the
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
(5) By failing and refusing to bargain collectively with
the Union as found above, Respondent has violated
Section 8(a)(5) of the Act.
(6) By interfering with, restraining, and coercing
employees in the exercise of their Section 7 rights, as
found above, Respondent has violated Section 8(a)(1) of
the Act.
(7) The strike which began on August 3 was an unfair
labor practice strike. The strikers are unfair labor practice
strikers.
(8) The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
proceeding, I recommend that Respondent, his officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning wages
and other conditions of employment with the Union as the
exclusive bargaining representative of the employees in
the unit hereinabove found appropriate.
(b) In any manner interfering with the efforts of the
Union to bargain collectively with Respondent, or in any
manner interfering with, restraining, or coercing
employees in their Section 7 rights.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union as
the exclusive representative of the employees in the
above-described appropriate bargaining unit, with respect
to their rates of pay, hours of employment, wages, and
other conditions of employment, and if an agreement is
reached embody it in a signed contract.
(b) Upon request by or on behalf of any employee who
went on strike on or after August 3, immediately reinstate
such employee to his former, or substantially equivalent,
position, without prejudice to his seniority and other rights
and privileges, discharging, if necessary to effect such
reinstatement, any employee hired since Respondent
committed unfair labor practices on August 3, and in the
event of a failure or refusal to reinstate any striker entitled
to reinstatement as provided herein, make such striker
298-668 0-69-18
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whole in accord with the section of this Decision entitled
"The Remedy."
(c) Preserve until compliance with any order for
reinstatement or backpay made by the Board in this
proceeding is effectuated, and, upon request, make
available to the Board and its agents, for examining and
copying, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records relevant of a determination of backpay and
reinstatement rights provided under the terms of such
order.
(d) Post at its place of business in Fremont, California,
including all places where notices to employees are
customarily posted, copies of the attached notice marked
"Appendix."' Copies of said notice, to be furnished by the
Regional Director for Region 20 of the Board, shall, after
being signed by a duly authorized representative of
Respondent, be posted by him immediately upon receipt
thereof, and be maintained by him for 60 consecutive days
thereafter, in such conspicuous places. Respondent shall
take reasonable steps to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director, in writing, within 20
days of the receipt of this Decision and Recommended
Order, what steps Respondent has taken to comply
therewith.'
IT IS FURTHER RECOMMENDED that, unless on or before
20 days from the receipt of his copy of this Decision and
Recommended Order, Respondent notify the Regional
Director that he will comply with the foregoing
recommendations, the Board issue an order requiring
Respondent to take the action aforesaid.
6 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
1 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read. "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL, upon request, bargain collectively with
International Association of Machinists and
Aerospace Workers, AFL-CIO, Local Lodge
No. 1546, as the exclusive bargaining representative
of a bargaining unit consisting of all of our employees,
a bargaining unit consisting of all of our employees,
excluding our office clerical employees, salesmen,
guards, and supervisors as defined in the Act.
WE WILL NOT by refusing to bargain as required
above or in any other manner interfere with, restrain,
or coerce our employees in the exercise of their rights
as guaranteed by Section 7 of the Act. Our employees
are free to join or not join a union of their choice. We
will not in any way interfere with their freedom to do
so.
WE WILL, upon request, by or on behalf of any'
employee who has gone on strike since August 3,
immediately reinstate such employee to his former, or
a substantially equivalent, position, without prejudice
to his seniority and other rights and privileges,
discharging, if necessary to effect such reinstatement,
any employee hired since we committed our unlawful
refusal to bargain on August 3, and in the event of an
unlawful refusal or failure to reinstate any striker
entitled to reinstatement as provided herein, we will
reimburse or pay such striker for any loss of pay he
may suffer by reason of such failure or refusal.
HENRY PIEROTTI, J R., D/B/A
PIEROTTI MOTORS
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 13050 Federal
Building, 450 Golden Gate Avenue, Box 36047, San
Francisco, California 94102, Telephone 556-0335.